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Zoning board decision on vacation renters delayed

Several Sandusky homeowners may have to wait another month before learning if they can continue renting out their homes to tourists.

Andy Ouriel

Sandusky

Nov 19, 2011

Several Sandusky homeowners may have to wait another month before learning if they can continue renting out their homes to tourists.

In August, city officials told 12 property owners they were violating Sandusky’s zoning code by letting vacationers pay to stay at their homes.

The city ordered them to stop the practice immediately, and even threatened them with criminal charges if they persisted.

The majority of the homes are located on Cedar Point Drive and Curran Street.

Among the city’s gripes: Not all renters pay bed taxes when they shack up in the vacation homes.

The homeowners were hoping the city’s zoning appeals board would decide Thursday to let them continue renting the homes, but that decision has been delayed.

The board could schedule a special meeting to make a decision, or it could simply wait until the next scheduled meeting on Dec. 15.

“We want to make sure we do it right,” board member John Feick said. “I don’t want to end up going to court.”

City officials could very well find themselves in court if they don’t follow the law, said local attorney Barry Vermeeren.

Vermeeren represents three homeowners who were ordered to stop renting to tourists. He says his clients should be allowed to rent out their homes.

“Our zoning code, the way it’s written, says (the city) cannot prohibit the rental of these properties,” Vermeeren said. “The law is in our code. This board needs to follow the law.”

One of the property owners, Joseph Viviano, filed a lawsuit in Erie County Common Pleas Court shortly after the city sent out letters ordering the property owners to stop renting out their homes.

Viviano says the city’s order violates his constitutional rights. There have been no developments in his court case since October.

Comments

Factitious

Sat, 11/19/2011 - 9:54am

The constitutionality of zoning codes is firmly established. This is not a very effective way to get what they want. They're wasting their own money and the taxpayers' money.

They lawyers gotta love it, though.
_

devilsadvocate

Sat, 11/19/2011 - 3:59pm

If they allow this, then forget all the zoning codes. Don't ask me to follow one when a few people who have money (guess they have that money illegally by breaking the law) don't follow it and get away it. Might as well do away with all zoning if they allow this.

pow wow

Sat, 11/19/2011 - 4:21pm

Come on commissioners! These folks renting in the Sandusky area spend more money, than chasing down the bed tax. Commission Cole gets it.

BW1

Sun, 11/20/2011 - 12:30pm

devilsadvocate: If they allow this, then forget all the zoning codes. Don't ask me to follow one when a few people

This involves one small part of the zoning code, a part of questionable legitimacy that doesn't appear in most zoning codes. There used to be zoning codes in the South that barred people of certain ethnicity from living in some neighborhoods. When the Civil Rights Act passed, did you also pledge to ignore ALL zoning codes? If the city passed a zoning law banning the consumption of ice cream in all homes on Columbus Ave., and that was rightfully challenged, would you pledge to ignore ALL zoning codes?

Factitious: The constitutionality of zoning codes is firmly established.

Zoning codes on a general conceptual level, yes. That does not create carte blanche for local government to micromanage who stays in your house. It does not mean that all components of all zoning codes are sacrosanct. Turn your eyes to the eastern suburbs of Cleveland, where a city decided to stand fast on arbitrary zoning laws, in defiance of the principle of substantive due process. Not only did the Supreme Court rule against the city, they awarded MILLIONS of dollars in damages, merely for the revenues the property owner didn't make during the time it took to litigate.

Factitious

Mon, 11/21/2011 - 10:08am

BW1 makes an invalid ad absurdum argument. Laws must have a rational basis. Eating ice cream does not trample the rights of your neighbors. Unfettered hotelling of your house does.

We might be talking about a tiny little area of zoning regulation, but it's one of the most solidly defensible parts.

One recent occurance involve a house being rented out for a wedding. How would you like that next door to you every weekend?

BW1 also vaguely cites an unidentifiable case from "eastern suburbs of Cleveland," and is hereby invited to name it, or at least the jurisdiction and circumstances.

One case in Hudson comes to mind, in which an auto dealer bought property knowing it was zoned residential and then sued, claiming he was a victim of an unconstitutional "taking." And absurdly, he WON! But lower courts can be incompetent or worse, and predictably, sanity was restored in the appeals court.

The point is, anyone can sue for anything, and they do, sometimes out of foolishness (aided and abetted by unscrupulous or incompetent lawyers) and sometimes with the "slap suit," a calculated strategy of intimidating or harassing their target with an otherwise unwinnable claim.

For any elected official to defend unfettered hotelling of a house in a residential neighborhood is psuedo-pro-business posturing that looks ridiculous, and if they don't know it's indefensible, they ought to.

The city will need to deal with this. It may involve changes to the zoning code, and that's up to the Commission, but it will most certainly involve a (continued) review and strengthening of administrative policy, and that buck stops at the City Manager's office.

BW1

Mon, 11/21/2011 - 11:54pm

Factitious : BW1 makes an invalid ad absurdum argument.

The proper term is reductio ad absurdum, meaning to carry the logical outcome of an opponent's assumptions far enough to demonstrate their absurdity, and it's a valid method of argument, as I'll make more clear below.

Laws must have a rational basis.

That's part of the principle of substantive due process - what you left out is that the rational basis must that the proscribed activity materially infringes the rights of others. Which brings us around to:

Eating ice cream does not trample the rights of your neighbors. Unfettered hotelling of your house does.

But it doesn't. The mere fact of who stays in your house and the nature of your relationship with them does not have any impact on the rights of your neighbors. Your neighbors have no right to knowledge, predictability, or approval over who stays in your house at any given time or under what terms.
Until the externalities of your use of your house materially infringe their actual rights, how you use the house is none of their business. You can sacrifice chickens in a pentagram of candles, as long as your neighbors are not subjected to excessive noise, unpleasant odors, etc. You can have orgies, as long as you pull the shades. Your neighbors might be morally outraged, but they don't have a right to a world free of moral outrage.

The same goes for renting out the house. Unless there are externalities of that use, such as noise, garbage, litter, etc., which infringe on their rights, it's none of their business. You can have a different girlfriend move in with you every single week, or you can have a different individual rent the house each week - the only difference is one is an informal exchange of housing for "companionship," and the other is a contractual one for cash - the terms are a private matter between you and the person staying at the house. The zoning code allows the houses to be rented for 30 days or more at a time, and if each tenant signed a six month lease, then broke the lease and moved out after a week, and, because you had a desirable location, you had a list of prospective tenants in waiting that allowed you to sign another 6 month lease within an hour of a vacancy occurring, nothing would be materially different, but because of the wording on the contracts, it would be in compliance. That is why this provision is just as absurd as a localized ice cream prohibition.

We might be talking about a tiny little area of zoning regulation, but it's one of the most solidly defensible parts.

As I've pointed out above, it's one of the least defensible parts. Zoning codes deal primarily with use. The use of the house is not materially different from an owner-occupied house - the occupants use it to prepare and eat meals, sleep, relax, etc. I defy you to cite a zoning code that requires all occupants to own the home they occupy,

One recent occurance involve a house being rented out for a wedding. How would you like that next door to you every weekend?

Depending on the type and timing of the wedding, I might not like it, but that's no basis for prohibiting the actual rental; whatever negative effect the wedding could have on my rights is already covered under other existing laws, and the effect upon me is no different than an owner occupant next door who chooses to have a raging kegger every weekend. In fact, it's better - I can go tell the wedding host to keep the noise down, knowing that if the situation gets confrontational, I never have to see him again, but if it's the homeowner making all the noise, then I have to worry about the long term implications of creating a conflict.

BW1 also vaguely cites an unidentifiable case from "eastern suburbs of Cleveland," and is hereby invited to name it, or at least the jurisdiction and circumstances.

State ex rel. Shemo v. Mayfield Heights (2002), 95 Ohio St.3d 59, which established the right in Ohio for the recovery by a property owner from a municipality of the diminution in value of property during the time a municipality has enforced an unconstitutional regulation against the property. Shemo purchased property zoned residential and the city refused to change the zoning to commercial, despite having no good reason. Today, it's a Costco, and the city effectively paid to build it when Shemo was awarded over $9 million in damages because the city fought it so long. The court held that the zoning was unconstitutional as it applied to the owner's property because it did not substantially advance a legitimate health, safety or welfare concern. In other words, the intended use of the property didn't materially infringe anyone's actual rights.

One case in Hudson comes to mind, in which an auto dealer bought property knowing it was zoned residential and then sued, claiming he was a victim of an unconstitutional "taking." And absurdly, he WON!

Thank you for FURTHER making my case, and as the precedent I cited shows, there was nothing absurd about it.

and sometimes with the "slap suit," a calculated strategy of intimidating or harassing their target with an otherwise unwinnable claim.

It might help your case if you didn't misuse terms you don't understand. SLAPP (TWO P's) stands for Strategic Lawsuit Against Public Participation, and refers to a specific, and narrow set of laws passed in a few states regarding copyright and defamation actions aimed at stifling protected speech critical of the plaintiff. The term has no relevance to any aspect of this subject or the cases cited.

For any elected official to defend unfettered hotelling of a house in a residential neighborhood is psuedo-pro-business posturing that looks ridiculous,

No, it's a pro-liberty stance against busybodies abusing government to dictate aspects of their neighbors property use which are none of their business.

and if they don't know it's indefensible, they ought to.

All you've offered in support of the indefensible label is your naked assertion. Saying something over and over doesn't make it true.

If you want to infringe these owners' property rights, there are two things you need to establish to make it constitutional. First, you have to establish that the law serves a legitimate constitutional purpose, by demonstrating that someone's actual rights are infringed by, and only by, the activity in question. That's actual rights, not fake victimology rights like a right not to be offended, and you have to show causality - that the infringement is caused by the nature of the transaction which put a given person in the house, not the mere fact of that person being there. Second, you have to show that the law is the most effective, least intrusive means of achieving that legitimate goal.

So far, none of the commenters defending this fascist ordinance in other threads have been able to meet that burden, but at least some of them tried - you're not even doing that.

Nor'easter

Sat, 11/26/2011 - 10:18pm

Were these properties licensed and inspected as rental property? Was the short term rental bed tax collected and remitted to the city and county? Do the properties comply with commercial electric and plumbing codes and fire safety/ smoke detectors required for rentals? There are serious resons for these regulations.